The State Education Department
State Review Officer

No. 05-018

 

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Falls Central School District

 

 

Appearances:

Donoghue, Thomas, Auslander & Drohan, attorney for respondent, James P. Drohan, Esq., of counsel

 

 

DECISION
 

            Petitioner appeals from the decision of an impartial hearing officer which determined that respondent had provided her son with an appropriate education enabling him to earn a high school diploma. The impartial hearing officer also determined that a high school diploma was appropriately conferred upon petitioner’s son subject to a subsequent showing that one credit for art was properly given.  On appeal, petitioner seeks compensatory education for her son, an order directing that independent evaluations requested in 1995 take place, and a determination that a high school diploma was not appropriately conferred upon her son. The appeal must be dismissed.

 

            Petitioner's son is currently 28 years old and was initially classified by respondent’s Committee on Special Education (CSE) as other health impaired (OHI) in 1990. It appears from the record that he received special education services from respondent from 1990 through 1996.  In January 1996 respondent notified petitioner’s son, when he was 19 years old, that he met graduation requirements, was eligible to receive a high school diploma, and could participate in the June 1996 graduation ceremonies (Parent Ex. QQQQ).  Petitioner refused to accept the diploma. Petitioner’s son continued to receive educational services thereafter until at least October 1996. On the final hearing date in October 2001, the student was 25 years old, residing with his parents and not receiving any services from respondent.

 

            At the outset, two procedural matters must be addressed.  First, respondent has raised an affirmative defense asserting that the appeal was commenced in an untimely manner and should be dismissed.  A petition for review to the State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13). A petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period, as required by 8 NYCRR 279.2(b).  A State Review Officer may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13). The reasons for the failure to timely seek review shall be set forth in the petition (id.). An answer to a petition may interpose procedural defenses and a reply may be submitted in response to defenses raised in the answer (8 NYCRR 279.6). Pleadings that exceed page limitations established by regulation may be rejected in the sole discretion of the State Review Officer (8 NYCRR 279.8 [a], 279.8[a][5]). 

The impartial hearing officer’s decision that is the subject of this appeal is dated December 2, 2004.  It appears from the record that the decision was served by mail. On January 13, 2005, petitioner served respondent with an “appeal” that exceeded the 20-page limitation established by the state regulations pertaining to the practice on review of hearings for students with disabilities (8 NYCRR 279.8). The appeal was filed with the Office of State Review on January 18, 2005. By letter dated January 19, 2005, the Office of State Review advised petitioner that a State Review Officer had rejected her petition because it did not comply with page limitations (Respondent’s Memorandum of Law, Appendix A). The letter informed petitioner that leave had been granted to submit an amended petition but that she “must” serve respondent and file an amended petition by February 2, 2005 (id.).  An amended petition that complied with page limitations was served on respondent on February 7, 2005 and filed with the Office of State Review two days later.  The amended petition was served five days beyond the service deadline established by the State Review Officer. As an affirmative defense respondent asserts that the appeal should be dismissed as untimely. Petitioner has not filed a reply to respondent’s procedural defense (8 NYCRR 279.6).  Petitioner offers no explanation for the delay in serving the petition for review; therefore, I have no basis upon which to excuse the delay.  I find that the appeal is untimely and the petition is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).1

The second procedural issue is whether petitioner has standing to bring this appeal.  The Individuals with Disabilities Education Act (IDEA) and Article 89 of the New York Education Law set forth procedural safeguards with respect to the provision of a free appropriate public education (FAPE) which include the requirement that parents must be given an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a FAPE (20 U.S.C. § 1415[b][6]; N.Y. Educ. Law § 4404[1]). The plain language of 20 U.S.C. § 1415(f)(1) provides that the "parents shall have an opportunity for an impartial due process hearing."  These procedural safeguards guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate (Honig v. Doe, 484 U.S. 305, 311-312 [1988]).  The Regulations of the Commissioner of Education define a parent as “a natural or adoptive parent, a guardian, [or] a person in parental relationship to the child as defined in Education Law section 3212” (8 NYCRR 200.1[ii]), which in turn states that “a person in parental relation to another individual shall include his father or mother, by birth or adoption, his step-father or step-mother, his legally appointed guardian, or his custodian” (N.Y. Educ. Law § 3212[1]; see also 20 U.S.C. § 1401[19][A]; 34 C.F.R. § 300.20[a]). Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer may appeal to a State Review Officer of the State Education Department (8 NYCRR 200.5[j]).

 Petitioner has filed this petition for review by a State Review Officer on behalf of her 28-year-old son. Her petition does not indicate that she is her adult son’s guardian or that she has been delegated any decision making authority for her son, or whether her son approves of the petition or desires the relief requested.  In bringing this appeal petitioner does not assert that she is aggrieved by the impartial hearing officer’s decision, nor does she seek relief for herself such as reimbursement for expenditure of her funds as a result of a denial of a FAPE to her son during his period of IDEA eligibility. She only asserts that her son is aggrieved by the impartial hearing officer’s decision. Because of her son’s age and the claims asserted, petitioner lacks standing to appeal the impartial hearing officer’s decision.  Unlike the circumstances in Application of a Child with a Disability, Appeal No. 04-067, the parent here is not seeking tuition reimbursement for private services obtained, and the student is over 21 years of age and no longer eligible for IDEA services. I, therefore, dismiss petitioner’s appeal on the ground that petitioner lacks standing to bring the petition for review. 

 

Despite dismissing the petition on procedural grounds as untimely and commenced without standing, in the interests of finality and prevention of further delay, I have reviewed the merits of petitioner’s appeal.

 

The impartial hearing officer who issued the determination from which petitioner currently appeals, was appointed in October 1996 to preside at the hearing (IHO Decision, p. 2). The hearing convened on October 22, 1996 and concluded five years later, after 30 hearing dates, on October 11, 2001 (id.).  As noted by the impartial hearing officer, the hearing took longer than it did for respondent’s son to start and complete his high school education (IHO Decision, p. 8).  Apparently, the parties were given the opportunity to submit post-hearing briefs at the conclusion of testimony and petitioner “after a significant period of time requested a decision indicating that a brief would not be submitted” (IHO Decision, p. 3). The impartial hearing officer’s decision was issued more than three years after the last day of testimony on October 2001, and more than eight years after the start of the hearing. The impartial hearing officer noted that delays in completing the hearing process were occasioned by petitioner’s intervening court actions (culminating in a denial of certiorari by the United States Supreme Court in 1997),2 petitioner’s illnesses, settlement discussions, changes in counsel representing respondent, and adjournments for educational testing and subsequent CSE meetings (IHO Decision, p. 2).

           

On the initial hearing date of October 22, 1996, petitioner listed issues in dispute which involved alleged denial of the following: equal access to course study (Oct. 22, 1996 Tr. p. 12); specialized equipment, such as books on tape (id.); a functional word processor (Oct. 22, 1996 Tr. p. 13); a computer and its programs for the student's computer graphics course (id.); equal access to the CSE (id.); a special education teacher (Oct. 22, 1996 Tr. p. 14), amended individualized education programs (IEPs) (id.), a FAPE (Oct. 22, 1996 Tr. p. 17); the student's due process rights regarding a scheduled Child Study Team and a CSE meeting in October 1995 (Oct. 22, 1996 Tr. pp. 20-21); and a denial of equal access to testing (Oct. 22, 1996 Tr. p. 21). Petitioner also alleged falsification of grades to reflect passing scores (id.) for course completion necessary for graduation (Oct. 22, 1996 Tr. p. 18).

 

  Following a lengthy gap in the proceedings, the parties reconvened on December 19, 2000 to identify the issues still pending.  The remaining issues included the parent’s request for independent speech-language, neurological and neuropsychological evaluations; the appropriateness of the student’s IEPs while classified, specifically the student’s transition plan; the appropriateness of the student’s graduation and whether he completed physical education and art requirements; and the parent’s request for compensatory education (Dec. 19, 2000 Tr. pp. 4-5).

 

            In his decision dated December 2, 2004, the impartial hearing officer found that the student had “long passed the age of mandatory educational entitlement,” that a substantial amount of testimony had no relevancy to issues presented, and that as time passed issues shifted, as did the status of petitioner’s son (IHO Decision, p. 4). After requesting that both parties submit post-hearing briefs, the impartial hearing officer determined that three issues remained before him to be decided:3 1) whether the diploma issued by respondent to petitioner’s son was properly conferred; 2) if the diploma was properly conferred, was petitioner’s son entitled to any compensatory education; and  3) what, if any, education or compensatory education is petitioner’s son entitled to if the diploma was not properly conferred (id.).

 

            The impartial hearing officer found that petitioner’s assertion that her son’s diploma was not properly conferred because he did not receive physical education instruction to be without merit. The impartial hearing officer noted that early in hearing proceedings he advised petitioner that if she had “an objection to the validity of the diploma” that he would order respondent to provide a course to meet that requirement (IHO Decision, pp. 5, 11; see June 19, 1997 Tr. p. 121). He further noted that at no time afterward did petitioner indicate that she wanted the course provided. He further found that the student’s medical condition was chronic and severe, and that respondent had continually found the physical education requirement not appropriate. The impartial hearing officer found petitioner’s assertion that answers on the student’s Mathematics Regents I and III examinations were improperly changed and the student did not pass the examinations to be without merit based upon hearing respondent’s witness testimony and reviewing the examinations (IHO Decision, p. 5). The impartial hearing officer found that the student’s art class was appropriately modified and accurately graded (IHO Decision, p. 6) and found no merit to petitioner’s assertion that English credits and grades were invalid (IHO Decision, p. 11).

 

The student’s educational history is set forth in the hearing record and discussed in five prior appeals to the State Review Officer (Application of the Bd. of Educ., Appeal No. 91-35; Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Disability, Appeal No. 94-40; and Application of a Child with a Disability, Appeal No. 96-43).  Familiarity with the facts in those decisions will be assumed.  However, some discussion of the student’s educational record is appropriate for purposes of context.

 

The student was initially referred to respondent’s CSE by his mother in June 1990 (IHO Ex. 10D; Parent Ex. RR2 at pp. 15-16; June 19, 1997 Tr. p. 174).  Prior to that time the student had received home instruction due to gastrointestinal and reflux problems that developed in the fall of 1988.   A July 1990 psychological evaluation revealed that the student’s intellectual development was in the high average range and also that the student demonstrated visual and auditory attention processing difficulties (Parent Ex. UUUU). Academic delays were noted in the area of reading and writing. The evaluating psychologist recommended that the student be classified as learning disabled and stated that the student would benefit from resource room services.   He indicated that further medical diagnosis was required to be able to address the student’s “health problems” (Parent Ex. UUUU).  At the beginning of the student’s ninth grade year, a CSE met on September 6, 1990 but a recommendation was held in abeyance pending medical reports, specifically a medical examination of the student (Parent Exs. VVVV, AAAAA, RR2, pp. 15-18, 31).  At an October 10, 1990 impartial hearing the parent agreed to submit the student to a physical examination conducted by a physician selected by the district and the impartial hearing officer remanded the matter to the CSE following receipt of a current physical (Parent Exs. RR2, SS). The student returned to school on October 11, 1990 but collapsed and was taken by ambulance to the hospital (Parent Ex. TTT).  The following day the parent requested an “emergency” CSE meeting for October 15, 1990 (Parent Ex. VV).  A CSE convened on that date and classified the student as OHI.  He was recommended for homebound instruction three hours per day for five days per week (Parent Exs. Q, XX, DDD, BBB, FFF, BBBBB).  The student was also recommended for individual Reading Improvement services five times per week for 40 minutes because he did not pass the PEP test (Parent Ex. CCCCC). Alternative testing techniques included extended time if needed (Parent Ex. Q). 

 

In January 1991 the student’s teacher estimated that he was working at a 4th or 5th grade level in English and suggested his curriculum might need to be changed (Parent Ex. K). That same month the parent requested that the CSE pay for independent neurological and neuropsychological evaluations of the student. The CSE met on February 5, 1991 and recommended an updated psychological evaluation to assess any changes in behavior and to accumulate comparative data (Parent Ex. GGGGG).  The CSE also requested updated medical records and approved a neurological evaluation.  The CSE deferred making a recommendation for an independent neuropsychological evaluation, pending the results of a hospital evaluation conducted in October 1990.  However, a State Review Officer upheld the parent’s request for a neuropsychological evaluation  (Application of a Child with a (Handicapping Condition, Appeal No. 92-19).  According to the student’s final transcript, for the 1990-91 school year he received credit for the following courses:  Global Studies (1), English 9R (1), Math Course I (1), and Earth Science 9 (1) (Dist. Ex. 2).  The record indicates that during the school year the district provided the student with instruction, including instruction delivered in the evening and on weekends, from as many as eight different teachers (Parent Ex. SSS).  In addition the student reportedly received remedial reading instruction (Parent Ex. PPP).

 

On September 25, 1991 the CSE met and determined that the student was no longer eligible for special education, largely based on the results of the hospital evaluation (Parent Ex. Z).  The student’s IEP noted that medical documentation requested by the CSE had not been provided. Declassification support services, consisting of eight counseling sessions to assist the student with the transition from school to home, were recommended (IHO Ex. 10D at p. 16).  Petitioner appealed the determination of ineligibility and the student’s October 1990 IEP became his pendency placement throughout the student’s high school years.

 

Following the student’s collapse in October 1990 his academic performance reportedly declined (Parent Exs. B, C, D, E, MMM, DDDDD).  The student’s teachers indicated that he was unable to complete Regents level work and during the 1991-92 school year the student was transferred from Regents classes to a less rigorous course of study (Parent Exs. F, K, NNNNN).  In November 1991 a State Review Officer ordered that the student’s IEP be amended to include a word processor (Application of the Bd. of Educ., Appeal No. 91-35). The student’s transcript revealed that the following academic credits were earned during the 1991-92 school year: Global Studies 10 Ess. (1), English 10 Ess. (1), Latin I (1), and Math Ess. C (1) (Dist. Ex. 2). Payroll records suggest that the student received instruction from at least five different teachers.  In addition to weekday instruction, the teachers tutored the student on evenings and weekends (Parent Ex. SSS).  At the time of a neuropsychological evaluation conducted in June 1992, the student’s cognitive functioning was reported to be “significantly impaired” . . . due most likely to a combination of neurological and psychiatric factors” (Dist. Ex. 11).

 

In June 1992 an impartial hearing officer rendered a decision upholding the district’s September 1991 declassification of the student. On September 1992 a State Review Officer annulled the impartial hearing officer’s decision and ordered the CSE to “adequately assess the child in any, and all, areas of suspected disability, and recommend an appropriate handicapping condition, if any” and for the parent to cooperate with the CSE in having the student evaluated (Application of a Child with a Handicapping Condition, Appeal No 92-32; Parent Ex. IIIII). In April 1993 the student’s mother requested that he continue to receive instruction in Social Studies, Latin II, Health and Math Essentials D during the summer months (Parent Ex. OOOOO). The district approved the following summer services: English/Reading 20 hours total instruction, Social Studies (11) 20 hours total instruction, additional hours for administration of the Regents Competency Test, and Math Essentials 16 1/2 hours of instruction (Parent Ex. PPPPP).    During the 1992-93 school year the student earned the following academic credits:  Social Studies Ess. 11 (1), Writing 1 (1/2), Practical Communication (1/2), Math Ess. D (1), Statewide Biology (1), Reading (1/2) (Dist. Ex. 2).

 

The record is sparse regarding the student’s academic history in subsequent years. Documents in evidence suggest the student continued to receive home instruction from numerous teachers during the 1993-94 school year (Parent Ex. SSS). The student’s transcript reveals that the following credits were earned that year:  Economic Ess. (1/2), Health (1/2), Math Course III (1/2) (Dist. Ex. 2).   

 

In a letter dated August 23, 1994, the parent requested an impartial hearing, asserting that the district had not complied with earlier decisions by an impartial hearing officer and the State Review Officer to provide the student with a word processor (Application of a Child with Disability, Appeal 94-40). Following another impartial hearing and appeal to the State Review Officer by the parent, the matter was remanded to the CSE to consider whether the student’s IEP should be amended to include the use of a word processor with spell check and grammar check, as specialized equipment.  The CSE met on January 20, 1995.  The student’s classification as OHI and placement recommendation were deemed “status quo at this time”  (Parent Ex. WWWW).  The committee recommended adding a computer/word processor with spell check, grammar check and thesaurus; and a calculator to the student’s IEP.  A triennial evaluation was also recommended.

 

On March 2, 1995 the parent requested another impartial hearing, alleging that the district failed to provide the student with the appropriate specialized equipment (Apr. 11, 1995 Tr. p. 14).  A hearing was held on April 11, 1995 in which the district indicated that it would continue to provide the student with instruction in his then current courses until they were completed (Apr. 11, 1995 Tr. pp. 4-5).  Those courses included Math IV, English 12, Participation in Government, Psychology as a Social Studies elective, Computer Graphics (art) and Latin II.  The district also agreed to conduct a triennial evaluation of the student, followed by a CSE meeting. A hearing date was reserved in the event the parties could not reach agreement (Apr. 11, 1995 Tr. p. 18).  A psychological evaluation was conducted in April 1995 (Dist. Ex. 13).  The evaluator reported that the “results of the WAIS-R indicate superior intellectual potential” however noted that the student displayed  “extreme difficulty with short-term auditory memory” and “extreme difficulty with pencil control.”  The results of the student’s performance on the Wechsler Intelligence Achievement Test (WIAT) were “in general well below expectations” and the examiner noted weaknesses in basic reading, reading comprehension and listening comprehension.  The psychologist indicated that the student’s weaknesses were of “unknown origin” and “documentation in the records is equivocal with the suggestion that both neurological and psychiatric factors contribute to [the student’s] poor intellectual and academic performance” (Dist. Ex. 13). He noted that with the “aid of computers and adaptive testing, [the student] has successfully passed his major academic subjects to date” (Dist. Ex. 13). 

 

By letter dated May 12, 1995 the student’s mother indicated that it was not feasible for the student to graduate the following month, at the end of the 1994-95 school year (Parent Ex. J). She noted that the student had not completed reading the required literature for the state English curriculum, nor had he completed the Math Course IV, Studio in Art, or Psychology courses. The student’s mother opined that the student had been denied a FAPE and indicated that the student would not accept his diploma in June 1995 because he had not fulfilled the local diploma requirements.

 

On June 9, 1995 a CSE met to review the student’s IEP, as well as the results of recent testing (Parent Exs. O, JJ).  An IEP/CSE coversheet from the meeting indicated that the student’s classification would remain OHI and the student would continue to receive homebound instruction 3 hours per week per course of study.  Extended time limits were to be further discussed with the student’s teachers.  The following evaluations were recommended: occupational and physical therapy, speech/language, neurological, and a psychiatric evaluation.  The coversheet indicated the student was eligible for a 12 month program “or course completion”.  The document further stated “meet to review OT/PT, speech evaluations ASAP.  Determine if [student] is eligible for compensatory education.  Meet to develop IEP based on compensatory ed. determination” (Parent Ex. O).  The student’s June 1995 report card revealed that he received credit for the following courses: Participation in Government (1/2), English 12 Ess. (1), and Science and Society (1) (Parent Ex. U). 

 

In September 1995 the student underwent occupational and physical therapy evaluations (Parent Exs. OOO, QQQ).  The physical therapist found that with the exception of his left upper extremity the student’s sensation, range of motion and muscle strength appeared to be within normal limits.  She concluded that the student’s needs were of a medical, rather than educational nature and declined to recommend school based physical therapy (Parent Ex. OOO).   A school-based occupational therapy consultation was recommended.  However, direct treatment in the school setting was not recommended due to an inability to monitor the student’s cardiac, pulmonary or blood pressure status (Parent Ex. QQQ).

 

Petitioner indicated during the course of the proceedings that following the end of the 1994-95 school year the student was approved for additional instruction so that he might complete his courses (Oct. 22, 1996 Tr. pp. 24-26, 33-34). In addition, report cards for the 1995-96 school year suggest the student was enrolled in Psychology, Studio in Art, and Math IV, although of these courses, Studio in Art was apparently the only course needed for graduation.  Although the student’s parent alleged that he did not receive instruction after June 1995, the record indicates that the parent and student refused to accept additional art instruction (Mar. 25, 1999 Tr. pp. 956-59, 1014; Dist. Exs. 27, 29, 30, 31, 32). In October 1995 a Special Education Physician Evaluation was completed. The evaluator recommended occupational therapy consultation services to train the student on a voice-activated computer and to improve the efficiency and functionality of the student’s signature (Parent Ex. PPP).

 

By letter dated January 23, 1996, the student was informed that he received a final grade of 79 in his art course and had therefore met graduation requirements and was eligible for a high school diploma (Parent Ex. QQQQ).   On February 23, 1996 the CSE met for the stated purpose of developing a transition service plan and reviewing evaluations (Parent Ex. YYY).  The CSE recommended that the student’s classification of OHI be maintained and that he continue Psychology and Math IV courses (Parent Ex. ZZZ). The following related services were also recommended:  individual occupational therapy once per week for two months, daily training on voice activated computer 30 minutes for two months, and an assistive technology evaluation.  Minutes reveal that the student’s mother requested independent educational evaluations, specifically a speech/language evaluation and a neuropsychological evaluation.  Additional notes suggested that the district would initiate an impartial hearing regarding the speech language evaluation and consult with counsel regarding the neuropsychological evaluation (Parent Ex. ZZZ).

 

The CSE convened on July 11, 1996 to offer the student a diploma (Oct. 22, 1996 Tr. pp. 12, 23-26). Discussions held during the October 22, 1996 proceedings suggested respondent would continue to provide the student with instruction in courses he had not yet completed (Oct. 22, 1996 Tr. p. 25).  These courses were apparently not needed for graduation. The student’s final transcript indicated that he received the following additional credits: Latin II (1), Psychology (1/2), and Art (1) (Dist. Ex. 2; Parent Exs. V, U).  The document also indicated that the Math IV class was still in progress (Parent Ex. 2).  The district attempted again to present the student with a diploma in October 1996 but the student’s parent would not accept it (June 19, 1997 Tr. pp. 97, 102).

 

Petitioner challenges the impartial hearing officer’s determinations that her son had met the requirement for graduation from high school and that her son is not entitled to evaluations and compensatory education. I will discuss the request for evaluations and compensatory education.   

 

Although a number of issues were raised, the crux of this appeal is petitioner’s allegations that her son did not receive a FAPE, compensatory education, the provision of evaluations at respondent's expense, and a determination that the diploma conferred to her son was invalid.

 

The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).

 

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)

 

New York Education Law specifically provides for IDEA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]); see also Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-077; Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024).  Generally, under the IDEA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]).  Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]). The Second Circuit, however, allows for the provision of compensatory education services for a student over 21 years old where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994]; Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 [1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right that the IDEA clearly provided-- a FAPE between the ages of 3 and 21 (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp.2d at 387). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-077; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).

 

I have thoroughly reviewed the voluminous hearing record and conclude that although there were deficiencies in the delivery of services to the student, the deficiencies did not rise to the level of a gross violation of the IDEA which resulted in a denial or exclusion of the student from educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F.Supp.2d 375, 387 [N.D.N.Y. 2001]).  The record suggests the student’s homebound instructional services were not always provided in accordance with his IEP, specifically the student did not always receive three hours of instruction per course per week (May 17, 2001 Tr. pp. 2102, 214; Parent Exs. SSS, QQQQQ). In addition, the parent alleges that services and assessments recommended by the February 1996 CSE were not provided (Oct. 22, 1996 Tr. p. 14).  However, the record also indicates that in addition to services provided during regular school hours, respondent provided the student with instruction in the evenings and on weekends (Parent Ex. SSS) and attempted to make up missed sessions (Oct. 1, 2001 Tr. pp. 2382; Parent Exs. OOOOO, PPPPP).  Respondent also extended instruction into the summer (Feb. 20, 1998 Tr. p. 397, Feb. 26, 1998 Tr. p. 452, May 17, 2001 Tr. p. 2125) and the following school year (Feb. 26, 1998 Tr. pp. 471-72; Dist. Exs. 34, 35; Parent Ex. SSSSS) to assist the student with the completion of his coursework.  Respondent provided instruction that allowed petitioner’s son to pass from grade to grade during his high school years taking general education curriculum courses.  In addition, the district continued to provide the student with instruction after respondent believed that he had met the requirements for graduation (Parent Exs. UUUUU, TTTTT; May 17, 2001 Tr. pp. 2133-35).

 

I also find that petitioner’s claims regarding educational evaluations and transitional planning have become moot.  In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome (Murphy v. Hunt, 455 U.S. 478, 481 [1982]). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all the circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief (Christopher P. v. Marcus, 915 F.2d 794, 802 [2d Cir. 1990]).

 

An exception to mootness exists for claims that are “capable of repetition, yet evading review” (Honig v. Doe, 484 U.S. 305, 318 [1988]). The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). Controversies are “capable of repetition” when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Russman v. Bd. of Educ., 260 F.3d 114, 120 [2d Cir. 2001]). Consistent with the mootness doctrine, State Review Officers have determined that there is no need to decide issues on appeal that are no longer in controversy, or to make a determination that would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 02-110; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60). Based on the record before me, I find that because of petitioner’s son’s age, an order directing educational evaluations and transition planning would not provide appropriate or meaningful relief.  Accordingly, request for that relief is not granted and is dismissed.

 

I have considered the parties’ remaining contentions and I find them to be without merit.

 

THE APPEAL IS DISMISSED.

           

           

 

Dated:

Albany, New York

 

__________________________

 

March 25, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1  Petitioner is an experienced advocate who has been given notice regarding the procedural requirements of the appeals process.  Petitioner has been involved in 5 prior petitions for review by a State Review Officer regarding her son who is the subject of this appeal (Application of the Bd. of Educ., Appeal No. 91-35; Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Disability, Appeal No. 94-40; and Application of a Child with a Disability, Appeal No. 96-43).  She has brought petitions for review regarding her other children as well (Application of a Child with a Handicapping Condition, Appeal No. 92-18; Application of a Child with a Disability, Appeal No. 94-39; Application of a Child with a Disability, Appeal No. 96-38; Application of a Child with a Disability, Appeal No. 96-51; Application of a Child with a Disability, Appeal No. 96-76; Application of a Child with a Disability, Appeal No. 97-13).  Petitioner has also brought petitions for review as an advocate for other parents (e.g. Application of a Child with a Disability, Appeal No. 04-099; Application of a Child with a Disability, Appeal No. 04-103).  In Application of a Child with a Disability, Appeal No. 04-103, dated January 5, 2005 and issued before petitioner’s untimely resubmission of her amended petition in this appeal, the State Review Officer dismissed that petition for review because it was not commenced in a timely manner and no good cause for the untimeliness was asserted.

 

2  Appeals filed by petitioner delayed the hearings and included an appeal to the Commissioner of Education for the State of New York (IHO Ex. 4),  federal appeals to the United States District Court, Southern District of New York (Dist. Ex. 1), United States Court of Appeals, Second Circuit (IHO Ex. 5), and a Petition for Writ of Certiorari (IHO Ex. 9) which was not granted by the United States Supreme Court.

 

3  The impartial hearing officer noted that petitioner failed to submit a post-hearing brief identifying what petitioner believed to be the remaining issues (IHO Decision,  p. 4).